



From the American Law Register for October, 1861. 



WRIT 



OF 



HABEAS CORPUS. 



EX-PARTE MERRYMAN. 



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[ From the American Law Register for October, 1861. ] 



S3 



WRIT OF HABEAS CORPUS. 



EX-PARTE MERRYMAN. 



A question is presented to the people of the United States, of 
more interest and importance than any which has arisen since the 
Constitution was adopted. There are now confined in the fortresses 
of the Nation a large number of what may properly be called State 
prisoners. They have been arrested by military power, and are 
held in custody without any civil process. When the commanders 
of these forces are served with a writ of habeas corpus, they refuse 
to comply with it, by direction of the President. The question, 
therefore, is, are these prisoners lawfully confined, or is it a gross 
outrage upon their rights of personal liberty ? Many persons, even 
in the States which are still loyal, charge the President with usurpa- 
tion. Many loyal citizens, though acquiescing in the proceeding as 
a matter of necessity, still doubt its constitutionality. As the coun- 
try is now struggling to sustain the Constitution, it is of the utmost 
importance to demonstrate, as it is believed may be done, that the 
measures adopted by the Government are strictly within the powers 
conferred by that instrument. The precise point has never been de- 
cided by the court of last resort. But in the case of ex parte Merry- 
man, Ch. J, Taney, in an opinion published in the July number of the 
Register, decided that, in the arrest of Merryman, the President 
acted without constitutional authority. The high position occupied 
by this jurist renders this opinion, in the minds of some, conclusive. 



2 WRIT OF HABEAS CORPUS. 

On the Other hand, the Attorney General has given to Congress an 
official opinion, in which he clearly justifies the arrest of Merryman, 
and all others who, in the opinion of the President, are implicated 
in the rebellion. In support of this view is the unanimous concur- 
rence of the Cabinet, composed of men, many of whom are eminent 
lawyers, who would not disgrace a position on the bench of the 
Supreme Court. The Attorney General holds the same position 
now as the Chief Justice did before his elevation to the bench, and 
is believed by many to be fully as well qualified for the ofiice. 
Other distinguished jurists have volunteered opinions on one side or 
the other. The weight of authority would seem to be, therefore, 
strongly in favor of the President. 

An attempt will now be made to show that the power of the 
President to do what he has done, is clearly inferrable from the 
Constitution and the existing laws of Congress; that this view of 
the subject has been fully sanctioned by the Supreme Court of the 
United States, and that the Chief Justice himself has advanced 
propositions that are utterly inconsistent with his decision in the 
Merryman case, and with the doctrines contained in it. 

I. The clauses in the Constitution bearing upon the question are 
the following : — 

Art. 1, Sec. 9. — "The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when, in cases of rebellion or invasion, the public safety may 
require it." 

Art. 2, Sec. 2. — " The President shall be Commander in-chief of the Army and 
Navy of the United States, and of the militia of the several States when called into 
the actual service of the United States." 

Art. 2, Sec. 3. — "He shall take care that the laws be faithfully executed." 

Art. 6. — "All executive officers — of the United States — shall be bound, by oath 
or affirmation, to support this Constitution." 

Amendments, Art. 5. — "No persons shall be held to answer for a capital or 
otherwise infamous crime, unless on a presentment or indictment of a grand jury, 
except in cases arising in the land or naval forces, or in the militia, when in actual 
service." 

Law of 1795. — " Whenever the laws of the United States shall be opposed, or the 
execution thereof obstructed by combinations too powerful to be suppi'essed by the 
ordinary course of judicial proceedings, or by the powers vested in the Marshals in 
this act, it shall be lawful for the President of the United States to call forth the 
militia of such State, or any other State or States, as maybe necessary to suppress 
such combination, and to cause the laws to be executed." 

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WRIT OF HABEAS CORPUS. 3 

No unprejudiced mind can fail to discover from eacli and all of 
these provisions, that the fraraers of the Constitution, and the Con- 
gress which was held a few years afterwards, contemplated a state 
of things in which civil proceedings must necessarily be superseded 
by military operations. IMilitary force is to be used because civil 
process has become ineffectual. It becomes not only the right, but 
the dutj? of the President, to call out and use the militia. He is 
bound by oath to do it. But the right to use this extraordinary 
power commences when, and not before, the ordinary safeguards of 
life, liberty and property become ineffectual. This is sometimes 
called suspending the writ of habeas corpus ; but it is a misapplica- 
tion of language. 

The writ has been suspended, if that term is applicable, and the 
privilege lost, before the President begins to act. How can there 
be any privilege of habeas corpus when the only oflScers, judicial or 
executive, who have anything to do with the writ, either dare not 
act, or, through treason or rebellion, will not ? The right to use 
military force gives, of course, the right '.o dispense with civil pro- 
ceedings. The two forces are totally unlike, and proceed by totally 
different means. What has a General to do with a bench warrant, 
and who ever heard of such an oflScer rendering an account of his 
conduct to a Judge ? The President is commander-in-chief of the 
army and navy, and what is he to command them to do ? Plainly, 
nothing but to kill or to capture. If his soldiers kill, are they to 
be tried for murder on an indictment ? If they capture, are they 
to answer to a charge of false imprisonment ? The bare suggestion 
is enough to show the absurdity of such a claim. It is clear, then, 
that, granting to the President the right to employ a military force,* 
is, per se, authorizing him to suspend the writ of habeas corpus, if 
that term can properly be applied to such a state of things as pre- 
supposes the absence of any such writ, and the inability on the 
part of those claiming the privilege, to use it. It^is urged that the 
Constitution vests this power only in the legislative department. 
The justness of this claim will be considered hereafter. But sup- 
pose it to be correct. The Legislature has vested the power in the 
President by the law of 1795, above quoted. If, then, there was a 



4 WRIT OF HABEAS CORPUS. 

combination in Maryland too powerful to be suppressed by the ordi- 
nary course of judicial proceedings, and Merryman was implicated 
in it, the President was explicitly authorized by Congress to arrest 
him by military force, and to hold him as a captive. 

But the President had this power without the act of Congress. 
This is clearly to be inferred from several of the clauses which have 
been referred to, and particularly that which provides that " the 
privilege of the writ of habeas corpus shall not be suspended unless 
when, in cases of rebellion or invasion, the public safety shall 
require it. 

The Attorney General has well remarked that " the Constitution 
is older than the Judiciary Act." It existed before there were any 
Judges who could issue a writ of habeas corpus. There was a 
President before there was or could be any act suspending the privi- 
lege of such a writ. There was a time, therefore, in which a rebel- 
lion might have taken place, when, if the President had not had the 
power of arresting the rebels, the Government might have been 
destroyed. It is not to be presumed that the authors of the Con- 
stitution intended to leave the country so exposed. 

Where the Constitution provides that the writ shall not be sus- 
pended except under certain circumstances, and does not say by 
whom, the fair inference is, that it refers to those who, for the time 
being, have the power of violating it. It establishes three co-ordi- 
nate branches of the Government : the Legislative, Executive, and 
Judicial. Why should it be supposed to refer to the Legislative 
alone ? Congress is not in session, on an average, more than one- 
third of the time. The suspension of the writ is only to take place 
on a sudden and unexpected emergency, and then as a measure of 
necessity, to preserve the Government. Such an emergency is 
twice as likely to occur Avhen Congress is not in session as when it 
is. Yet it is contended, although the very existence of the 
Government may depend on the suspension of the writ, that no 
way is provided by the Constitution for its own preservation. 
Judges of the Supreme Court have frequently eulogized the sagacity 
and wisdom of the autliors of the Constitution. If such a construc- 
tion is correct, it does indeed show their sagacity, for the language 



WRIT OF HABEAS CORPUS. 5 

proves that they foresaw the danger, but at the same time convicts 
them of the grossest folly, in not guarding against it. We ought 
not, therefore, to limit the clause in question to the legislative de- 
partment unless the reasons for it are conclusive. 

But judging from the provisions of the Constitution alone, if the 
power of suspending the writ is to be restricted to any one depart- 
ment alone, it would naturally be referred to the Executive. It has 
already been suggested that this department has, for the exercise of 
power, twice as much time as the Legislative. It is the most active, 
and is much more likely to come in collision with the personal rights 
of individuals. The clause in question limits the suspension of the 
writ to occasions of insurrection and invasion, and it is in times of in- 
surrection and invasion that the military force is to be called out, 
and put under the control of the Executive. This is certainly a 
remarkable coincidence ; it is virtually saying, that in times of in- 
surrection and invasion the President shall be invested with mili- 
tary power, and then the writ of habeas corpus may be suspended. 
If it is asked, by whom ? the answer is obvious, and the reply would 
be almost unanimous, "by the President." 

But the Chief Justice insists that, although there is not the slight- 
est reference to Congress in the clause in question, yet that it must 
be regarded as referring to that body alone, because he says that it 
is found in the first article of the Constitution, and this article " is 
devoted to the Legislative Department of the United States, and 
has not the slightest reference to the Executive Department." So 
far as his opinion is based on the construction of the Constitution, 
it rests almost entirely on this assumption. If, then, this assertion 
is erroneous, the whole argument falls to the ground. 

A careful examination of the first article will show, beyond a 
doubt, that it is not confined to the Legislative Department, and 
that it does in one instance at least refer to the Executive, whereas 
the whole force of the argument depends upon the exclusiveness of 
the reference. It does, indeed, treat chiefly of the Legislative De- 
partment. But the first clause of section ten of that article is 
wholly devoted to the prohibition of action in certain cases by the 
State Governments, and has no reference to Congress. One clause 



6 WRIT OF HABEAS CORPUS. 

of Section nine, of the first article, standing in it very near to the 
clause in question, is in these words : — 

" No money shall be drawn from the Treasury, but in consequence 
of appropriations made hy law." Now which department draws 
money from the Treasury? The Executive, without doubt. To 
say that Congress shall not draw money from the Treasury without 
an appropriation, would be to say that Congress shall not make an 
appropriation without an appropriation, for an act appropriating 
money is all that it is capable of doing. Here, then, is a clause, in 
the same section with the one regarding the suspension of habeas 
corpus, referring, notwithstanding the assertion of the Chief Jus- 
tice to the contrary, directly to the Executive. Why, then, may not 
that clause refer to the same department ? How illogical to con- 
clude that it does not. 

An inference may be drawn in favor of this power of the Presi- 
dent, with almost equal clearness, from those clauses which require 
him to see that the laws are faithfully executed, and that he shall 
take an oath to support the Constitution. The imposition of this 
duty necessarily carries with it the right to use whatever means are 
appropriate and necessary to accomplish this object. This rule is 
always applied in the construction of powers. The Supreme Court 
has held, over and over again, that the power to do an act necessa- 
rily includes the power to use the appropriate means to do it. 
Marshall, C. J., says: " The powers given to the Government imply 
the ordinary means of execution, and the Government, in all sound 
reason and fair interpretation, must have the choice of the means it 
deems the most convenient and appropriate to the execution of the 
power." 4 Wheat. 316; 1 Kent, 252. This doctrine is asserted by 
that eminent jurist, to apply to the Government, Avhich consists of 
the Executive, as well as Legislative and Judicial departments. 
On this ground a great many Acts of Congress have been held to 
be constitutional, although no explicit power has been given. No 
good reason can be assigned why it should not be applied to 
the Executive. If the President plainly sees that he cannot sup- 
port the Constitution without arresting a rebel, who will otherwise 
destroy it, is he to do nothing, and witness the loss of that which it 
is his sworn duty to save ? 



WRIT OF HABEAS CORPUS. 7 

II. It will next be shown that the Supreme Court of the United 
States has decided, in a case precisely analogous, that the Presi- 
dent has the power to do all that he has done in this case. This 
was the case of Luther vs. Borden, 7 How. 1. An attempt was made 
to revolutionize the State Government in Rhode Island by what was 
called the Dorr Rebellion. The regular State Legislature declared 
the whole State under martial law. The State Government, with 
the assent of the President of the United States, authorized the 
defendants, as a part of the militia of the State, to break the house 
of the plaintiff, and arrest him as a rebel. They broke the house, 
but did not find him; and for this he sued the defendants. The 
Supreme Court held the defendants justified under this authority of 
the President. If Luther bad been arrested and held in custody, 
he would have been in the same situation as Merryman. The right 
to break the house depended entirely on the right to make the 
arrest. The constitutional and legal authority of the President 
was merely an extension of the power Avhich he has to suppress 
insurrection against the General Government, so as to make it 
apply to insurrections against State Governments. Whatever mea- 
sures he could adopt with regard to the latter, he could a fortiori use 
as to the former. Chief Justice Taney himself, in giving the decision 
of the Court, (7 How. 44,) says : " A similar question arose in the 
case of Martin vs. Wheat. 12 Wheat. 29. The first clause of the 
first section of the Act of February 28, 1795, authorizes the Presi- 
dent to call out the militia to repel invasion. It is the second clause 
of the same section which authorizes the call to suppress insurrec- 
tion against a State Government. The power given to the Presi- 
dent in each case is the same, with this difference only, that it can- 
not be exercised by him in the latter case except upon the applica- 
tion of the Legislature or Executive of the State." Again, he says, 
(7 How. 44,) "It is true that in this case the militia were not 
called out by the President ; but upon the application of the Gov- 
ernor, under the Charter Government, the President recognized 
him as the executive power of the State, and took measures to call 
out the militia to support his authority, if it should be found neces- 
sary for the General Government to interfere ; and it is admitted 



8 WRIT OF HABEAS CORPUS. 

in the argument that it was the knowledge of this decision that put 
an end to the armed opposition to the Charter Government, and 
prevented any further efforts to establish by force the proposed 
Constitution. The interference of the President, therefore, by an- 
nouncing his determination, was as effectual as if the militia had 
been assembled under his orders, and it should be equally authori- 
tative." 

It is clear, then, that in this case the Court held that where there is 
an insurrection in a State, against the State Government, the Presi- 
dent has the right to authorize the use of military force to arrest, with- 
out any civil process whatever, any person found in armed opposi- 
tion to such Government, or aidinor or abettinci; in the insurrection. 
If this is suspending the writ of habeas corpus, then the Court held 
directly that the President has such a right, by force of the Consti- 
tution and the Law of 1795. 

In the same case, the Court also held that the President was the 
sole judge whether an insurrection existed, and whether the person 
arrested was implicated in it; and that his decision cannot be 
revised by a civil tribunal. Ch. J. Taney, (7 How. p. 43,) in giv- 
ing the decision of the Court, quotes with approbation the language 
of his predecessor, in Blartin vs. 3Iott, 12 Wheat. 29: "Wherever 
a statute gives discretionary power to any person, to be exercised 
by him upon his own opinion of certain facts, it is a sound rule of 
construction, that the statute constitutes him the sole and exclusive 
judge of the existence of those facts." Again he says, (7 How. p. 43,) 
" After the President has acted, and called out the militia, is a 
Circuit Court of the United States authorized to inquire whether 
his decision is right?" "Could the Court, while the parties were 
actually contending in arms for the possession of the Government, 
call witnesses before it to inquire which party represented a m.-ijority 
of the peop-c? If it could, then it would become the duty of the 
Court (provided it came to the conclusion that the President had 
decided incorrectly) to discharge tJiose wlio ivere arrested or dis- 
trained hy the troops in the ser\'ice of the United States, or the 
Government which the President was endeavoring to maintain. If 
the judicial power extends so far, the guarantee contained in the 



WRIT OF HABEAS CORPUS. 9 

Constitution of the United States, (alluding to the guarantee to 
each State against domestic violence) is a guarantee of anarchy, 
and not of order." Again, he says: "By this act, (the Act of 
1795,) the power of deciding whether the exigency had arisen upon 
which the Government of the United States is bound to interfere, 
is given to the President." The same doctrine has been repeatedly 
held by the same Court. 9 How. 615 ; 16 How. 189. 

It is clear, then, that if Luther had been actually arrested and 
detained, and had applied to the Supreme Court for a writ of 
habeas corpus, although the circumstances would have made the 
case more doubtful than Merryman's, the Court would have said it 
had no power to interfere. 

III. It remains now to show that the doctrines advanced by the 
Chief Justice in the Merryman case, are wholly irreconcilable not 
only with the decision in the Borden case, but with his own 
opinions as expressed in giving the decision of the Court in that 
case. On page 530, Am. Law Reg., vol. 9, he says: "With such 
provisions in the Constitution, expressed in language too clear to 
be misunderstood by any one, I can see no ground whatever for 
supposing that the President, in any emergency, or in any state of 
things, can authorize the suspension of the privilege of the writ of 
habeas corpus, or arrest a citizen except in aid of the judicial 
jjoiver." How can this be reconciled with what the Chief Justice 
said in the Borden case? There the question was distinctly put to 
him, can the President, to suppress an insurrection, authorize a 
military officer, directly and not in aid of any civil process, to break 
open the dwelling-house of an insurgent, and arrest him? He an- 
swers, unhesitatingly, Yes. In Merryman's case the same question 
precisely is put to him, and he says No. There is not a shade of 
difference between the two cases, except that in one the rebellion 
was against the State Government, and the other against the United 
States Government. In the Rhode Island case, it is true, martial lav/ 
had been proclaimed. But the Chief Justice says, 4 How. 14, "In 
relation to the Act of the Legislature, declaring martial law, it is not 
necessary, in the case before us, to inquire to what extent, nor 
under what circumstances, that power may be exercised by a 



10 WRIT OF HABEAS CORPUS. 

State." So that that circumstance made no difference between 
the cases. 

On the same page, 530 Am. Law Reg., the Chief Justice says : 
" Nor can any argument be drawn from the nature of sovereignty, or 
the necessities of government, for self-defence in times of tumult and 
danger. The Government of the United States is one of limited 
powers." Yet in the Borden case, 1 How. 45, he says : " Unquestion- 
ably, a State may use its military power to put down an armed insur- 
rection, too strong to be controlled by the civil authority. The power 
is essential to the existence of every Government, essential to the 
preservation of order and free institutions." A similar comparison 
of other expressions used by the same Judge in the two cases, will 
show their utter inconsistency, not only in language, but in spirit. 

In the Merryman case, the Chief Justice treats the question as 
one involving merely the right of the President to act without the 
authority of Congress, and does not even allude to the law of 1795', 
although this Act was just as applicable in this as it was in the 
Borden case, while in the Borden case he considers the Act of 1795 
as conferring full authority upon him to do exactly what was done 
in the Merryman case. 

To sustain the proposition that the President has no power of 
himself to suspend the writ of habeas corpus, the Chief Justice 
quotes largely from the dicta of English jurists. But these are 
entitled to but little consideration, as the question turns mainly on 
the construction of the Constitution of the United States. He 
quotes also a remark of Judge Marshall ; but the case in which it 
was made did not bring to the attention of the Court, in the slight- 
est degree, the point whether the power of suspending the writ of 
habeas corpus is vested in the Legislative department alone, and 
not in the Executive department, under any circumstances. The 
observation of Judge Story to which he refers, shows that it was a 
matter of uncertainty with him. These authorities are referred to 
to show that the President, of himsf^lf, has not the power, by the 
Constitution, to suspend the writ of habeas corpus ; but this was 
not the question. It was, whether the Constitution, and the Latv 



WRIT OF HABEAS CORPUS. 11 

of 1795, vested this power in the President, as the Chief Justice 
himself held they did in the Borden case. 

Lastly. In the Borden case he took the ground distinctly, that a 
Court could not in any way revise the decision of the President, 
that such a state of insurrection existed as would justify him in 
making arrests of the insurgents ; whereas a large portion of his 
opinion in the Merryman case consists of a labored effort to show 
that the decision of the President was not supported by the situa- 
tion of Maryland at the time. If he gave the opinion of the Court 
correctly in the Borden case, he, as a Judge, had nothing to do with 
that question. If the President had acted erroneously, it was like 
an erroneous decision of the Supreme Court in a matter within its 
exclusive jurisdiction. If he acted corruptly, he would be liable to 
be impeached. In either case, in the language of the Chief Justice, 
7 How. 45, "the Courts must administer the law as they find it." 
But if it had been an open question, the circumstances fully justified 
the arrest. Johnston was advancing with a rebel army, to take 
Washington. Merryman aided the advance of this army a hun- 
dred times as much by preventing the approach of the United 
States troops, as he would have done by joining Johnston's army. 
If the President, then, could send a military force to capture John- 
ston, why not to capture Merryman ? But the Chief Justice says 
the civil authorities in Maryland had not been applied to. But 
they knew what had occurred, and had not acted, and how long was 
the President to wait for them ? The civil authorities in Virginia 
had not been applied to before the President sent an army to cap- 
ture Gen. Johnston, and it would have been as idle to have attempted 
to indict Merryman as Gen. Johnston. 

The manifest inconsistencies between the opinions of the Chief 
Justice in the two cases, can be rationally accounted for only on 
the supposition that, in the excitement of the moment, the Borden 
case had escaped his recollection. Fortunately the President, by 
following the principles of that case, has been able, so far, to support 
the Constitution. 

Congress appears to have taken the same view of the subject, for 
notwithstanding the publication of the decision in the Merryman 
case, and although many of the members are eminent lawyers, no Act 



12 WRIT OF HABEAS CORPUS. 

formally suspending the writ of habeas corpus has been passed, and no 
power has been conferred on the President differing from that con- 
tained in the Act of 1795. Indeed, the fatal consequences which 
would result from carrying into practical effect the doctrine " that 
no argument can be drawn from the necessities of Government for 
self-defence in times of tumult and danger," are so apparent, that 
the promulgation of it, even from high authority, is productive of no 
injury. It is like the attempt mentioned by Blackstone, to indict 
surgeons, under the law of Bologna, against shedding blood in the 
streets. There would be quite as much propriety in a court mar- 
tial ordering a soldier to be shot for removing a wounded comrade 
from a burning building, in violation of a strict order not to remove 
him under any circumstances. To deny to the General Govern- 
ment the power of self-preservation, would be to disregard a prin- 
ciple that pervades the whole law, and which is the governing rule 
in the construction of every statute and constitution — Ut res mar- 
gis valeat quam pereat. 

For what purpose is such a strict construction to be applied to 
the suspension of the writ of habeas corpus ? It sLould be done, 
it is said, to preserve the rights of the people. But those rights 
depend on the Constitution. It would be a strange way of preserving 
the privilege of the writ of habeas corpus, to so construe the Con- 
stitution as to cause its loss. If the Constitution is destroyed, of 
what use is the privileg^. 

One consideration seems to have been overlooked in these discus- 
sions regarding habeas corpus. What right has any one to the 
privilege but a loyal citizen ? Why should any one trouble himself 
to secure to a rebel a franchise under a Constitution which he is 
endeavoring to destroy ? By his rebellion he loses his rights of 
property ; why not his rights of liberty ? Who but a rebel would 
extend to a rebel the benefit of a writ which might restore him to a 
situation in which he could do further mischief? 

One decisive objection to the decision in the Merryman case is, 
that if its doctrines were carried into full effect. Secession Avould 
become easy and sure. If the President can use no force except in 
aid of the judicial power, Secession, however unconstitutional, 



AVEIT OF HABEAS CORPUS. 13 

is safe. If the prosecuting officer or the Judge in any par- 
ticular district is a traitor, or if a majority of the people are 
secessionists, nothing could be done, because there would be no 
judicial process in aid of which the President could call out the 
military power. All the prisoners, including those taken in battle, 
now in the hands of our Government, ought to be discharged, be- 
cause the writ of habeas corpus, according to the Merryman case, 
has not been suspended, and not one of them is held under any 
civil process whatever. It is impossible to make any sound dis- 
tinction between the capture of a rebel in Maryland by Gen. Cad- 
wallader, and one in North Carolina by Gen. Butler. 

Many affect to fear that the President will usurp despotic powers 
if he is justified in the measures which he has adopted ; but there is 
not the slightest ground for such an apprehension, cither with re- 
gard to the individual who now occupies the chair of "State, or any 
of his successors. He has no standing army devoted to his inte- 
rests, and dependent on him for support, to sustain him in any such 
usurpation. The steps which he has taken were not for his own 
aggrandizement, but to preserve the institutions of the nation, and 
among them, the writ of habeas corpus. No man can, in this coun- 
try, with safety to himself, deprive any one of the privilege of this 
writ without the approbation of a great majority of his fellow 
citizens; and if it is ever lost, so long as the Constitution remains, 
it will be with the full consent of those wl^o^are entitled to it. 

D. 






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